Lietzau and Lietzau (No 3)
[2020] FamCAFC 324
•17 December 2020
FAMILY COURT OF AUSTRALIA
| LIETZAU & LIETZAU (NO. 3) | [2020] FamCAFC 324 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REOPEN – Where the applicant seeks that an earlier hearing of this Court be reopened and the question of whether leave to appeal is required be reheard – Where there are two circumstances according to authority which would allow for a reopening of the hearing – Where the applicant does not address either of those two circumstances and instead asserts that he was not afforded procedural fairness – Where this Court heard the earlier application and determined it should be dismissed –– Where whether the applicant was afforded procedural fairness or not is not an issue for this Court on an application to reopen but for any Appeal Court should the applicant wish to complain on that basis – Where the applicant’s only remedy is to seek special leave to appeal to the High Court of Australia – Application dismissed. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Lietzau |
| RESPONDENT: | Ms Lietzau |
| FILE NUMBER: | PTW | 1898 | of | 2017 |
| APPEAL NUMBER: | WEA | 7L | of | 2019 |
| DATE DELIVERED: | 17 December 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 17 December 2020 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| PREVIOUS APPEAL JUDGMENT DATE: | 24 August 2018 |
| PREVIOUS APPEAL JUDGMENT MNC: | [2018] FamCAFC 167 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Johnson |
| SOLICITOR FOR THE RESPONDENT: | Kim Wilson & Co |
Order
The applicant father be granted leave to rely on his late filed written summary of argument.
The Application in an Appeal filed on 29 September 2020 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lietzau & Lietzau (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: WEA 7L of 2018
File Number: PTW 1898 of 2017
| Mr Lietzau |
Applicant
And
| Ms Lietzau |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court today is an Application in an Appeal filed by Mr Lietzau (“the father”) on 29 September 2020. The application is supported by an affidavit also filed by the father on 29 September 2020.
In addition, the father has helpfully provided a written summary of argument which was received by the court on 16 December 2020, and in respect of which I have given the father leave to rely on for the purposes of the hearing today.
The application is opposed by Ms Lietzau (“the mother”).
The application in its terms seeks as order 1, that the hearing of the father’s earlier application determined by this Court on 22 June 2020 be reopened, and the question of whether leave to appeal is required, be reheard.
There are three other orders sought, but as I have clarified with the father, those orders only need to be considered if order 1 is successful.
To put that into context, on 24 August 2018, Thackray J heard and determined an application by the father for leave to appeal orders made by Magistrate Sutherland, as her Honour then was, on 31 January 2018. His Honour dismissed the application for leave to appeal. Subsequently, on 19 December 2019, the father filed an Application in an Appeal, seeking an order reopening the hearing before Thackray J.
That application was heard by this Court on 29 January 2020, and on 22 June 2020, the application was dismissed.
The first issue before this Court at that time was whether it was open to this Court to reopen the hearing of the application that Thackray J heard. The position in relation to that, was if the order made by Thackray J was an interlocutory order, then that allowed for an application to reopen that hearing, but in limited circumstances.
It was common ground that the order made by his Honour was an interlocutory order, and thus, what was dealt with by this Court in the reasons delivered on 22 June 2020, was whether there were circumstances established which would allow for a reopening of the hearing. This Court identified according to authority, that there were two circumstances which allowed for that. First, where it was established that there was a misunderstanding by the court of a material aspect of the applicant’s case, and secondly, where there was a material change of circumstances. In those reasons, this Court determined that neither of those circumstances applied, and thus, the application to reopen should be dismissed.
In the context of dealing with the matter though, it was considered appropriate to address an assertion by the father that leave to appeal was not in fact required, and that he had brought the application before Thackray J on a misunderstanding of the requirements. Indeed, as I recall, written submissions were received in relation to that assertion. In the ultimate, this Court determined that leave to appeal was required, and not to put too fine a point on it, that was not a vehicle through which Thackray J’s order could be attacked, or could in another way be reopened.
The position now for the father, who has brought the application of 29 September 2020 seeking to reopen the hearing which resulted in the orders made on 22 June 2020, is that the first question in relation to any application to reopen is whether the order the subject of the hearing which is sought to be reopened, is interlocutory or final. The father here argues that the order of 22 June 2020 is interlocutory. However, I do not need to determine that issue for the reasons that follow.
Even if it is assumed that the order is interlocutory, the next step provides the difficulty for the father in pursuing this application, and that is, he would have to establish one or other of those two circumstances referred to above, and it is plain that he has not even attempted to do that. Instead, what the father asserts, and I confirmed this with him at the commencement of this hearing, is that he was not afforded procedural fairness at the hearing culminating in the orders made on 22 June 2020.
What the father seeks to argue is, that, regardless of whether the order of 22 June 2020 was final or interlocutory, this Court, as he put it, has the power or the jurisdiction to reopen the hearing, where there has been a failure to provide procedural fairness, and he cites decisions of the House of Lords and a decision of the High Court of Australia in support of that proposition.
However, that is not a proposition with which I agree, and there is no basis established by which the hearing culminating in the order of 22 June 2020, can be reopened.
It seems to me that the only remedy for the father if he wishes to pursue an allegation that he was not provided with procedural fairness, is that he would need to make an application seeking special leave to appeal to the High Court of Australia. In simple terms, this Court heard the matter on 29 January 2020, it was determined that the application should be dismissed, and it was. Absent the establishment of one or other of the circumstances allowing for the reopening of the hearing resulting in an interlocutory order, the only remedy is an appeal.
The father alleges that he was not provided procedural fairness. Whether he was or whether he was not, is not something that I propose to consider or deal with today, because that is not what I am able to do. That is an issue for any Appeal Court if the father wishes to complain on that basis, and allege that the order should be set aside because of that alleged appealable error.
In these circumstances, the application will be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 17 December 2020.
Associate:
Date: 19 January 2021
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